When the Egyptian military ousted President Hosni Mubarak on February 11, 2011, it was greeted by most Egyptians as the savior of the nation, the institution that had sided with the people against dictatorship and would steer the country through a period of transition toward democracy. Ten months later, the military still retains considerable popularity, according to recent opinion polls. Meanwhile, the Supreme Council of the Armed Forces (SCAF), the military committee that has assumed functions of the president and even those of the disbanded parliament, has become a deeply controversial, divisive body, openly taking sides in the politics of the country and becoming seemingly ever more authoritarian as well as erratic in its policies.

Two recent developments in particular have changed the image of the SCAF for many Egyptians: The first was the release of the so-called Selmy document. The second was the pronouncement, following the success of the Muslim Brotherhood’s Freedom and Justice Party and, unexpectedly, of the Salafi al-Nour Party in the first round of parliamentary elections on November 28, that the incoming elected parliament will not represent the whole of the Egyptian people and that the military cannot entrust it with the writing of the country’s new constitution.

The Selmy document

On November 1, then deputy prime minister Ali al-Selmy released a “Declaration of the Fundamental Principles of the New Egyptian State” intended to govern the drafting of a new constitution, provisionally in the second half of 2012. These “supra-constitutional principles” were almost certainly written in direct consultation with the SCAF and, despite proposed amendments to subsequent drafts, constitute the most explicit articulation to date of the powers and prerogatives sought by the Egyptian military in the post-transition phase.

Most controversially, Article 9 of the Selmy document identified the armed forces as the “protector of constitutional legitimacy” and stipulated that only the SCAF, “to the exclusion of all others,” may discuss the details of the annual defense budget, which would otherwise appear as a single line in the general budget. The article also required any legislation pertaining to the armed forces to be approved by the SCAF, which would additionally wield veto power over the president’s constitutional authority to declare war.

A separate section gave the SCAF broad influence over the writing of the new constitution. Crucially, the military council could overrule any passage that “contradicts the basic tenets of the Egyptian state and society and the general rights and freedoms confirmed in successive Egyptian constitutions including the Constitutional Declaration issued [unilaterally by SCAF] on 30 March 2011 and subsequent constitutional announcements.” Parliament would no longer form the committee to draft the constitution, a move which contradicted the “Constitutional Declaration”; instead, it would nominate only 20 of the committee’s 100 members. The governing bodies of seventeen designated professional and social sectors, many of them subservient to the government or headed by former regime appointees, would then propose 160 names, from which an unnamed authority, presumably the SCAF-appointed government, would select the final 80 members.

Confronted by hundreds of thousands of demonstrators who braved massive police violence and brutality to protest the Selmy document, the SCAF retreated, but only partially, and temporarily. It accepted the resignation of the interim civilian government of Prime Minister Esam Sharaf, but then appointed the 78-year old Kamal al-Ganzouri to head the new “national salvation government,” in the face of widespread demands for someone not as closely associated with the Mubarak era. Bowing to pressure, the SCAF also promised to move the presidential election up from April 2013 to June 2012, but it did not take the Selmy document officially off the table. Indeed, it has become clear since the first round of parliamentary elections that, even as it bobs and weaves to defuse and deflect opposition, the SCAF will fight to retain the Selmy document’s most important provisions.

The battles lines are drawn

SCAF resistance to calls for it to transfer power immediately to a transitional civilian authority—whether to a “national salvation government with all powers” to manage the country or to a “civilian presidential council”—stiffened visibly on the eve of the elections. To yield, Deputy Defense Minister and SCAF member Major General Mukhtar al-Mulla argued, would be “a betrayal of the nation.” As the “Tahrir forces” mobilized for another “million man march” to back the demands for a power transfer on November 27, Minister of Defense and SCAF head Field Marshall Mohammad Hussein Tantawi warned ominously that “no one can pressure the armed forces.”

The SCAF was clearly capitalizing on the boost to its public image following the replacement of the Sharaf government to countermobilize. It publicly absolved the Central Security Forces and the police of any part in firing on demonstrators in Cairo’s Tahrir Square and in other cities, instead blaming the violence that killed 43 and wounded over 2,000 entirely on thugs paid by the “hidden hands” of a “third party.” This effort to play up the conspiracy theory coincided with the appearance of groups claiming to represent a “silent majority” of Egyptians, which denounced the demonstrators as a threat to the country’s security and stability and held a rival march on November 27 in support of continued SCAF rule until the presidential election.

The stakes have only risen since the first round of parliamentary elections. The Freedom and Justice Party was bound to do well, but it exceeded all expectations by winning 46 percent of the district seats contested and 37 percent of the party-list vote, while the al-Nour Party achieved an even greater surprise by taking 21 percent of the district seats and 24 percent of the party-list vote. Additional seats went to parties allied with the Freedom and Justice Party or to smaller Islamist parties such as al-Wasat. They are likely to do at least as well in the next two rounds of elections, which will be held in largely rural governorates where voters tend to be more conservative. The Freedom and Justice Party is all but assured of a commanding position in the next parliament.

The SCAF has responded to these results by seeking to minimize the constitutional role of the incoming parliament. Tantawi’s legal assistant, SCAF member Major General Mamdouh Shahin, had already anticipated a strong showing by the Islamists when he asserted on November 27 that the incoming parliament cannot dissolve the interim government or form a new one, as the power to do so belongs to the president—meaning, until one is elected, to the SCAF. Tantawi returned to the theme after the elections, describing Egypt as “a presidential state not a parliamentary one,” and adding for good measure, “even if the Muslim Brotherhood won the elections it doesn’t mean they’ve been chosen by the whole people.” That view was echoed by al-Mulla, who insisted that the elections “certainly don’t represent all sectors of society.”

The emphasis on the preeminence of presidential powers appears to be a fallback plan in case the SCAF’s ongoing attempt to minimize the role of the incoming parliament in writing the new constitution fails. Speaking to the foreign press on December 7, al-Mulla stated that the members of the “Committee of 100,” which will draft the constitution, must be approved by the interim government and by a newly created civilian “advisory council.” The suggestion that a body other than parliament would determine the composition of the drafting committee has aroused suspicion that the main purpose of the advisory council is to revive the Selmy document and rubber-stamp SCAF decrees. It also prompted the Freedom and Justice Party to withdraw its representative on the council in protest.

Although Shahin subsequently backtracked on al-Mulla’s statement and reconfirmed that parliament alone will select the members of the drafting committee, this only added to the bewildering array of constitutional pronouncements by the SCAF. When Shahin asserted that the incoming parliament cannot form a new government, he based his comments on the Constitutional Declaration issued by the SCAF on March 30. Yet, al-Mulla’s statement of December 7 denying the parliament authority to appoint the constitutional drafting committee directly contradicted that same declaration. The SCAF further demonstrated its ability to claim the authority it wishes by amending the interim constitution—again unilaterally—in order to delegate some of its presidential powers to the al-Ganzouri government.

These maneuvers deepen the impression that the SCAF seeks to retain control of the political and constitutional processes in the transitional phase and beyond, paving the way to establish a “protected democracy” in Egypt.

Protected democracy, the Egyptian way

It is not always entirely clear why the SCAF is determined to retain a residual authority after it formally hands power to civilian leaders. What appears to be most at stake for the military council is its ability to remain beyond legal limits and government accountability. This is only partly in order to preserve the defense budget and keep the military’s extensive businesses under tight wraps or to ensure continued receipt and control of U.S. foreign military assistance worth $1.3 billion annually, which the SCAF fears could be reduced or cut if the Muslim Brotherhood or fellow Islamists assume office and reorient Egyptian foreign policy.

Just as importantly, the SCAF sees itself as the body best able to define the true nature and needs of the Egyptian state and guarantee the country’s national interests. It seeks to justify its political role through often xenophobic appeals to nationalism, constant reminders of the armed forces’ role in regaining Egyptian territory in the 1973 war with Israel, and a vague commitment to the populist legacy of the Nasser era, still codified in the constitution as the duty of the armed forces to “protect the socialist gains of the popular struggle.”

The SCAF also claims that protecting military expertise and professionalism requires maintaining the legal autonomy of the armed forces from civilian oversight. Behind this lies the “regime of exceptions” built up over decades of authoritarian rule: the Emergency Powers enabling the suspension of judicial protection of civil liberties and rights that have been in force continuously since 1981, which the SCAF endorsed and expanded in early September 2011; the internal security role of the armed forces, coupled with the extension of the jurisdiction of military courts over civilians accused of “political crimes,” “insulting” the army, or terrorism; the complete immunity of active or former military personnel from prosecution in civilian courts; the extensive representation of the armed forces, whether formal or informal, throughout central and local government, state-owned economic enterprises, and regulatory bodies; and complete autonomy over the defense budget and unaudited business enterprises.

Unless these exceptions are systematically dismantled, Egypt’s post-Mubarak transition will end in a protected democracy. Yet the tendency of any military in power is to resist the prospective loss of institutional prerogatives, not to mention to avoid being held accountable for past actions.

Challenging the SCAF requires sustained unity of purpose and determination among civilian leaders and political parties and movements, and a favorable external environment, neither of which is assured at present. An elected, civilian government faced with the need to stabilize the economy, deal with public discontent over unemployment and poor wages, and pursue more inclusive social policies—all while negotiating a new civil-military relationship—will remain perpetually at the mercy of the armed forces.

Yezid Sayigh is a senior associate at the Carnegie Middle East Center.

From Guide to Egypt’s Transition, Carnegie Endowment for International Peace: http://egyptelections.carnegieendowment.org/2011/12/15/the-specter-of-“protected-democracy”-in-egypt